Since the dawn of the mandatory COVID vaccination requirements coming into effect for some Queensland businesses towards the end of last year, the topic of vaccination in the workplace and the encroachment of this issue on the personal lives of employees has continued to remain a hot-button topic of controversy in recent times.

Since well before the implementation of the Public Health Directives in this area, HR Dynamics has continued to support to clients on all sides of the debate, from assisting multinational corporations to implement mandatory vaccination policies across their workforces in order to meet the requirements of Public Health Directives, to holding the hands of fledgling Mum and Dad business owners who have struggled in their quest to balance their legislative and OH&S obligations to their staff with that of their freedom and ability to make independent health choices of their own accord.

The past 6-8 weeks since the mandatory vaccination legislation was implemented in Queensland has seen quite an interesting shift in the great vaccination debate, with public health data confirming that whilst high vaccination rates have arguably averted what would have otherwise been a much greater health catastrophe, their lack of 100% effectiveness has still meant that we have not been completely inured to the struggle of having no staff whilst workers have had to self-isolate, and the pain of trying to run businesses with supply chains that have been decimated.

Whilst vaccination has mostly shared bi-partisan support from a majority of federal and state politicians, we are now reaching the point where those who have expressed a desire to get vaccinated voluntarily have already done so, and those who have chosen not to, have made a specific and conscious decision not to, and are not likely to change their minds. In the meantime, although they only make up about 10-15% of the population on average, the voices of the conscientious objectors out there have grown steadily louder and are now making themselves heard.

To date, there have been no successful Unfair Dismissal claims that have been handed down by the Fair Work Commission that have gone the employee’s way against any employer who has terminated an employee’s employment for refusing to be vaccinated.

However, there have been a number of applications that have found favour with the employer, with the Fair Work Commission finding in each instance of termination so far, that that the decision made by the organisation to terminate the employment of any staff member who refused to be vaccinated at the time was fair and reasonable.

Despite this, the threat of ongoing litigation from disgruntled ex-employees certainly appears to have rattled business confidence, with many law firms now providing more conservative advice around the imposition of mandatory vaccination policies in organisations in which no government mandates are in place, despite no unfair dismissal claims being successfully upheld. In addition to the added strain on employers, the new legislation has also had a considerable effect on the outcomes for the Fair Work Commission also, with timeframes for Unfair Dismissal Applications now blowing out exponentially.

In June last year, it was quite common to have a matter take less than 6 weeks to be finalised from application to decision, and a conciliation hearing was often organised within a fortnight of the Fair Work Commission’s receipt of the Application. Since the imposition of the Public Health Directives, some matters that we are assisting clients with are now taking up to 3 weeks just to be processed by the Commission, with hapless business owners and disgruntled employees then waiting for a further 6-8 weeks from the original notification date just to get to conciliation stage. Matters may take another three to six months from there to reach decision stage.

If nothing else, this time we find ourselves in at present speaks louder than ever to the value in obtaining sound HR advice prior to making major decisions about matters concerning employee welfare.

By Corey Dyer – HR Dynamics Senior Industrial Relations Specialist

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